Idealizing the United Nations Charter

As the U.S. Congress ploddingly considers military action in Syria, the question of whether United Nations authorization is required isn’t getting much attention. Not surprisingly, the Congress and the American people seem to believe the UN’s imprimatur is significantly less important than whether intervention is likely to succeed.

In the academy and for the global governance crowd, however, the necessity of UN authorization is the question du jour. Battle lines have formed. One camp insists that UN authorization is essential, and that bypassing the Security Council risks weakening a critical element of the international order. Yale Law School professors Oona Hathaway and Scott Shapiro made that case forcefully in yesterday’s New York Times. They insisted that by attempting to enforce the norm against the use of chemical weapons, the United States may be erodding a much more critical prohibition:

If we follow Kosovo and Iraq with Syria, it will be difficult, if not impossible, to stop others from a similar use of force down the line.

Consider the world that preceded the United Nations. The basic rule of that system, one that lasted for centuries, was that states had just cause to go to war when legal rights had been violated. Spain tried to justify its conquest of the Americas by saying it was protecting indigenous civilians from atrocities committed by other indigenous peoples. The War of the Austrian Succession was fought over whether a woman had a right to inherit the throne. The United States largely justified the Mexican-American War, including the conquest of California and much of what is now the Southwest, by pointing to Mexico’s failure to pay old tort claims and outstanding debts.

The problem with the old system was not that no one could enforce the law, but that too many who wished to do so could. The result was almost constant war.

If history was as the authors describe, their argument is tough to dispute. Who would really risk a slide back into the Hobbesian jungle just to punish Bashar al-Assad’s beastliness? But their stark vision of the world before and after the United Nations Charter is only loosely tethered to reality. The notion that it was the UN Charter that ushered in the post-World War II era of relative peace between the major powers ignores the critical role of nuclear weapons and mutual assured destruction. They also vastly overstate the strength of the norm against the use of force without Council approval. Post-1945 history is littered with examples of states (big and small, democratic and nondemocratic) employing military force across borders without Council approval. It’s really only since 1990-1991 that a fragile "Security Council norm" has emerged in practice. And the idea that this norm is what’s keeping states from each other’s throats is fanciful.

I say all this as someone who has argued that the UN Security Council is an important institution. But to my mind, its value is primarily political—it serves as a useful forum for key powers, it can provide them face-saving exits from crises, and it can slow the pace of events. (The veto power that Hathaway and Shapiro dismiss as a grievous historical mistake is in fact the basis of its utility in this function.)   I’m not at all convinced that bypassing the Council over Syria would do significant damage to the institution or diminish these advantages. I don’t see much evidence that the Kosovo war diminished the body’s utility. And the much more consequential 2003 invasion of Iraq without explicit Council approval was followed by several very productive years of Council work. The body that many had thought to be grievously wounded approved big new peacekeeping missions and passed resolutions—usually unanimous—at a remarkable clip.   

None of this means that intervention in Syria without UN approval is the right course of action. But fear that the world is on the cusp of a new war-of-all-against-all is not a good reason to oppose it.